(Or, The myth of the helpless mayor)
Umpire ejects Atlanta manager Bobby Cox
When complaints about a local assessor reach critical mass, the inevitable question arises for elected officials: Why don’t you fire him (or her)?
The officals’ answer is typically mumbled, and murky. “It’s complicated,” comes the sheepish reply. “Our hands are tied,” they dissemble. “Gee, we’d love to help, but the assessor has [X] years left on his/her term.”
But what is the truth of the matter? Can an assessor be removed, if their (mis-) conduct warrants it?
Hudson’s experience is instructive. Ever since the moderate and well-liked Al Kritzman (R.I.P.) retired, Hudson has had a string of controversial assessors, irate taxpayers coming before the Board of Assessment review (B.A.R.) and a long list of assessment lawsuits. These typically either get settled out of court, or tossed by a judge on some spurious “standing” ground which never addresses the substance of the issue.
Some mayors, most memorably Rick Scalera, have seemed to enjoy having things both ways: a tax assessor who sticks “those people” (i.e. the so-called newcomers and merchants) with inflated and unfair property taxes, plus plausible deniability. The message is: “Gosh, I sympathize, but my predecessor appointed the assessor... So there’s nothing I can do until his/her term expires. Sure wish I could help!”
Many Aldermen meekly accept this dodge, without looking into the details. In Hudson, the City Code provides a means for the Mayor to remove an Assessor, and State guidance appears to support that power—though with an added procedural layer to avoid its abuse.
Morever, in addition to legal means, there are also political methods within City Hall to achieving the same end, though again these may be abused. Lastly, there is the power of the purse, which in Hudson ostensibly resides with the Common Council.
On the legal side of the question, Article C4-4 of the Hudson City Charter deals with “Appointive officers and terms.” The Assessor is one of the officers listed (at Part A[1]) as someone who shall be appointed by the Mayor “for six years.” Mayors such as Scalera have cited this (often with backup from pay-to-say City attorneys) that this ends the debate: You just have to wait until the term expires.
However, the same section of the Charter then addresses, just two items down at C4-6, the Mayor’s “Power of Removal.” Section C4-6 states in full:
The Mayor may remove any person appointed to any City officer or position at his discretion. [emphases added]
Like the sweeping protection of free speech embedded our Constitution’s 1st Amendment, this portion of the City Charter is admirably concise, clear and emphatic. It does not distinguish between type of appointees. It doesn’t care whether they have terms of office or not. It includes “any person appointed” to “any” City office or position.
The Assessor’s position is clearly appointive, as it appears in the Charter’s own list of appointees. This terse, declarative, and unambiguous section on Power of Removal thus gives the Mayor the power to remove the Assessor “at his discretion,” regardless of term of service.
As it happens, our State has addressed this very question already. Counsel for New York’s Department of Taxation and Finance issued an advisory opinion (see this link) on “whether an assessor who has been appointed to a six-year term may be removed from office by the town board during the six-year term for reasons other than “dereliction of duties.”
Tellingly, the State did not conclude that you can’t remove an assessor appointed to a six-year term, or any length of term for that matter. Rather, relying on Subdivision 7 of Section 1522 of the Real Property Tax Law, which begins:
An assessor may be removed from office for just cause by the appointing authority after a hearing upon notice.
Again, State Law says that that assessors may be removed, only with the caveat that there has to be some oversight to ensure that removals don’t happen capriciously, say for partisan reasons. Without that caveat, every time you had a Mayor of a different political stripe, they’d summarily remove their predecessor’s appointee just because they could. The State continues to explain that
... if an appointing authority makes a determination to remove an appointed assessor from office, its determination is subject to an administrative review by the State Board of Equalization and Assessment. The statute provides the State Board with the authority to affirm, reverse or modify the determination of the appointing authority.
The “appointing authority” in Hudson’s case would be the Mayor, per the City Charter. If the State upholds the removal, the removed assessor could appeal in court (seek “judicial review” via an Article 78 proceeding). The State further explains that
Assessors are thereby protected from capricious removal or capricious disciplinary action by the appointing authority. However, exactly what would constitute “just cause” would have to be developed in each individual situation.
Nevertheless, generations of local mayors (and the legislators who ennable them) have punted when asked what they plan to do about punitive, out-of-control assessors, even though they have the legal power to act.
Meanwhile, there is another, more political method that mayors sometimes deploy to squeeze out, rather than fire, unwanted appointees.
Any executive officer has ways of making an appointee sweat, whether in the press, or in meetings, or during the day-to-day course of their City Hall duties. A mayor more than most has the bully pulpit, and can make a lot of noise in the local press which dutifully and usually acritically reports whatever the Mayor says. He (or Council members) can demand that the Assessor appear at public meetings to explain his or her decisions, and if they don’t show, make more hay of it.
The Mayor also the ability to make an appointee uncomfortable, by moving someone to a smaller office, or require them to punch a clock, or (as Kritzman often alleged Scalera had tried with him) threaten to curtail their benefits). The goal in such cases is to get the appointee to jump over the cliff, rather than having to push them. Anyone who has seen even a couple noir films should be familiar with this routine, though again it can be used for evil ends as well as good.
In addition, in Hudson the Common Council maintains the power of the purse at its disposal. But in the case of GAR Associates’ $170,000 contract—which now has taxpayers up in arms again—the Council appears to have abdicated its right to make sure their consultant didn’t stray off the reservation.
By allowing the Mayor to “negotiate” a contract without added stipulations specifying a continued role for the Council, they lost the ability to rectify gross errors except by getting on their knees and pleading. Their only specified role after forking over the $170K was to received “monthly reports,” though according to the City Clerk there are no such records on file in her office. Council President Don Moore has yet to reply to this site’s FOIL request which covers those reports. Do those monthly reports not exist, or did they not mention that they were going to turn the local bed-and-breakfast industry upside down, or did no one read them?
At this point, there is still some $20,000 left on GAR’s contract; will the City Council refuse to pay it, if GAR and/or Assessor Garth Slocum refuse to undo the B&B switcheroo?
And oddly, the contract alludes to an expectation that the serving Assessor would not finish out his term, with GAR demanding additional time and money if they have to get up to speed with someone new.
In the end, the final GAR contract appears to be boilerplate provided by the consultants themselves, with only one obvious change: The exemption of unspecified Waterfront parcels, presumably those held by the mining company Holcim, from further review. (Interesting negotiating skills, Rick: give the consultant everything they ask, with just one special favor for a corporation with whom you’ve been closely allied. This exemption raises the question whether the City’s reval is inherently and fatally-flawed, if a single major taxpayer was given special treatment not available to others.)
In summary, the City appears to have at least three means of avoiding more nonsense with its consultants and the Assessor: (1) removal, (2) pressure, and (3) the power of the purse. Instead, even "progressive" aldermen have kowtowed to the conventional wisdom which was speciously invented by previous Mayors to provide plausible deniability for headaches some seem to enjoy inducing in the citizenry.
